Daily Archives: January 9, 2013

The law school is a “scam” argument depends, in my view, on some tendentious ideas. A “scam” implies that law schools take people’s money and leave them with nothing. It is a serious charge. It is in my view unsustainable. It appears to depend on the idea that law schools bore some responsibility for the sudden and unpredictable collapse in the job market in post-08 period. But there is no disclosure language or data I am aware of that could have been provided to law students in, let’s say, 2006 that would have allowed students to plan for the waterfall towards which they were headed.

How did we get in to this situation? Some say it began with Washington University School of Law Professor Brian Tamanaha’s bracing call for change on the Balkinization blog in the summer of 2010. Let’s examine that and see if we can sort all this out.

The Tamanaha Manifesto and the Rule of Law Debate

In his manifesto for the reform movement, Failing Law Schools, Tamanaha described in absorbing detail many of the shortcomings of American law schools, without a great deal of attention to the important accomplishments of the institution unfortunately (including, it should be said, Tamanaha’s own work on the rule of law). He might even be our Kingsley Amis absent, sadly, the brilliant satire. But Tamanaha relies on very generalized data sets that do not provide persuasive evidence of misbehavior by any individual school, fails to test for counter-factual explanations, and draws conclusions that are only one among several possible explanations for the current situation.

In light of Tamanaha’s own conservative perspective on legal theory – one that I disagree with but view as articulate and informative – one consideration is that there is an ideological agenda at work here. A reshaping of American law schools along the lines suggested by his book would do a great service to American capital, which despises in many ways the legal profession and even the rule of law as it has evolved since the New Deal. Under tremendous economic pressure, capital is looking for ways to cut costs. A successful assault on what are viewed as costly and entrenched law schools would help tremendously in the battle against law firms and the courts as a whole.

Why might Tamanaha be willing to aid in this fight? It is not necessarily the case that he would do so with intent, though I do not rule that out. Among many other issues, Tamanaha’s work on the rule of law considers carefully the relationship between property rights and the state. That is a traditional concern of conservative figures like Hayek and Mises, whom Tamanaha clearly admires. But a problem with this approach is that those figures never dealt adequately with the impact of the transition by the 1930s from property to capital. The end of the Lochner era produced a traumatic ideological crisis within classical American liberal thought (what many now think of as conservatism).

Why, exactly? When property becomes capital, that is, when it employs labor to produce surplus value, two souls in the rule of law emerge. One guards narrow conceptions of property rights against intrusion from the state, what might be called the classical concept of the rule of law. The other soul that emerges, however, is a social concept of the rule of law that guards the human rights of labor against intrusion by capital and its allies in the deteriorating aristocratic classes – if we are talking of Europe and England – and its allies in the new managerial state if we are talking about the New Deal United States. An excellent introduction to one example of the social concept can be found in the work of Katherine Stone of UCLA here on industrial pluralism which represented the creation of a social rule of law in the workplace. I relied on similar arguments here.